Massachusetts High Court Weighs Gay Marriage Ruling
By Kavan Peterson, Staff Writer
National attention is focused on Massachusetts' highest state court, which is expected to render a decision any day now that will decide whether the state will become the first to allow gay and lesbian couples to legally wed.
The case at issue, Goodridge v. Department of Public Health, was brought by seven same-sex couples who challenge the state's refusal to grant them civil marriage licenses on grounds that the right to marry the person of one's choice is protected under the state constitution.
The Massachusetts attorney general's office, which defended the state's right to ban same-sex marriage, argued that the Bay State constitution offers no such protection, and that the issue is best left to the legislature. Granting marriage rights to gays and lesbians would not force religious groups to perform same-sex marriages, advocates said.
The Supreme Judicial Court (SJC) missed a self-imposed 130-day deadline last week (7/14) to rule on the matter and gave no hint when a decision would be forthcoming. In the past, the court has exceeded its deadlines by as little as three days and up to three months, the Boston Globe reported.
Lawyers involved in the case refuse to guess how the court will rule, but advocates and opponents of homosexual marriage predict a decision that will bolster the rights of gay and lesbian couples.
"Most legal scholars who have looked at Massachusetts' supreme court justices are concerned that they are going to rule against the will of the people and endorse same-sex marriage," Genevieve Wood, a vice president of the Family Research Council (FRC), a Washington, D.C. based advocacy group that opposes same-sex marriage, told Stateline.org.
Gay rights advocates hope that a victory in Massachusetts will lead to recognition of same-sex marriages in other states, a hope buoyed by recent gay-friendly rulings by the U.S. Supreme Court and Canada.
The Supreme Court ruled last month that the Constitution protects private sexual conduct between homosexuals, a decision that ignited debate over same-sex marriage, with Justice Antonin Scalia predicting in his dissenting opinion that the decision would open the door to gay marriage.
U.S. gay and lesbian couples have been legally marrying in Canada since same-sex marriage was legalized in the provinces of Ontario in June and British Columbia this month.
But advocates caution gay and lesbian couples to be prepared for a long battle to gain legal recognition of their status regardless of what happens in Massachusetts.
"We ... see a very long struggle ahead. In the U.S. it's going to be fought state by state, one by one," said David Buckel, senior staff attorney for Lambda Legal Defense and Education Fund, a national gay- and lesbian-rights organization.
Evan Wolfson, executive director of Freedom to Marry, a New York based advocacy group that promotes marriage equality for homosexuals said that "Some businesses and states will honor (gay couples') lawful marriages but other businesses and other states, and for a time the federal government, will discriminate against those marriages, and those couples... will have to live with the uncertainty of having their marriage honored and respected by some and discriminated against by others."
Lawmakers in 37 states have taken preemptive action to deny marriage privileges to same-sex couples by passing laws or state constitutional amendments that define marriage as a union between a man and woman. These laws are based on the federal 1996 "Defense of Marriage Act," which denies federal recognition of homosexual marriage and allows states to ignore same-sex marriages licensed elsewhere.
"The 1996 Defense of Marriage Act, a national law, not a state by state law, was passed by Congress and signed by (President Bill) Clinton to say that we don't have to recognize marriages that do not fit with what we define as marriage in this country," the FRC's Wood said.
If one state recognizes gay marriage, legal experts say anti-gay marriage laws will likely face constitutional challenge based on the Constitution's "Full Faith and Credit Clause," which requires states to honor the "public acts, record, and judicial proceedings of every other state."
"No (heterosexual) couple has any doubt their marriage will be respected and they're right to think that way because the general principle of law in the United States in every state and internationally is that a marriage that is valid where celebrated will be respected elsewhere even in places that would not have performed the marriage," Wolfson said.
For example, about half of states do not allow first cousins to marry, but no one suggests that a legal marriage of first cousins expires when a couple crosses a state border, Wolfson said.